the law

The Smearing of Kristen Clarke

Kristen Clarke Photo: Pablo Martinez Monsivais/AP/Shutterstock

Last Thursday evening, Tucker Carlson Tonight devoted another segment — at least its fifth since January — to the civil rights attorney Kristen Clarke, who has been nominated by Joe Biden to serve as assistant attorney general for civil rights. Until then, Carlson’s segments had focused on plumbing the archives of the Harvard Crimson to accuse Clarke, who is the president of the Lawyers’ Committee for Civil Rights Under Law and would be the first woman confirmed to the position, of being anti-white and anti-Semitic.

Thursday presented a new tactic. Maureen Faulkner, the widow of the Philadelphia police officer whom activist Mumia Abu-Jamal was convicted of killing in 1982, was a guest on the show. Clarke, said Carlson, had “worked very hard to get Abu-Jamal free. Clarke even referred to him as a ‘political prisoner.’” Faulkner went for it. “She hates white people, that’s my honest to god true feeling. And she wants to defund the police. She’s a vile woman. And she’s dangerous.”

None of this is true. Clarke never worked on Jamal’s case; she did work at the NAACP Legal Defense Fund, which argued one of his appeals, but she worked exclusively on voting rights, according to a source close to her. She also never called Jamal a political prisoner. The source, if you can call it that, for the smear appears to be Clarke being listed as a contact for a 1999 conference at Columbia Law School sponsored by the Institute for Research in African American Studies, where she was a student at the time, that included a panel called “In Defense of Mumia,” and a separate one on Black political prisoners; neither featured Clarke.

If all of this invective sounds familiar, it should. It’s the exact playbook that was successfully deployed in 2014 to topple the nomination of another Black civil rights attorney, Debo Adegbile, to the same position — down to the grieving widow’s appearance on Fox News. Unlike Clarke, Adegbile actually worked on the case, although a civil rights lawyer successfully representing someone in a constitutional case isn’t supposed to disqualify you for running the justice department’s civil rights division.

It’s impossible to argue that Clarke, a lifelong civil rights attorney who started her career in the division and has held just about every related senior position but leading it, isn’t qualified for the job. But the earlier bad faith attacks on Clarke have already traveled from cable to the U.S. Senate, which has yet to schedule a hearing for Clarke. During Attorney General Merrick Garland’s hearing last month, Utah Senator Mike Lee asked the nominee, “Would an individual’s past statements … as an adult, declaring that one racial group is superior to another, would statements like that be relevant to an evaluation of whether such a person should be put in charge of running the Department of Justice’s civil rights division?” Lee wanted to know, part of a series of misleading rapid fire questions. “What about anti-Semitic comments. Would those be relevant?”

Garland, who is Jewish, shot down Lee’s charge. “I’ve read, in the last few days, these allegations about Kristen Clarke, who I’ve also gotten to know. Who I also trust. Who I believe is a person of integrity,” Garland responded. Pressed again, he added with some heat,  “I’m a pretty good judge of what an anti-Semite is, and I do not believe that she is an anti-Semite. And I do not believe that she is discriminatory in any sense.” (For the record, neither does the Anti-Defamation League.)

As I write this, the homepage of the opposition-research site, a link recently tweeted by Ted Cruz, “spotlights” two nominees with photos on their homepage: Clarke and Chiquita Brooks-LaSure, who’s been nominated to run Medicare and Medicaid — both Black women.

“It’s impossible not to notice that women of color seem to be drawing fire for the wrong reasons,” says Justin Levitt, a Loyola Law School professor and former Civil Rights division official. National Women’s Law Center president Fatima Goss Graves told me, “These types of campaigns against women of color, and the language that is being used, to portray these nominees as ‘radical’ are not being levied against men.”

The Senate has never confirmed a woman of any race to run the Civil Rights division. That role wields the authority to oversee police departments that abuse their power, an authority former Attorney General Jeff Sessions actively worked to thwart, and to see to it that laws and court decisions that protect people from discrimination are properly enforced. This will also be the first redistricting cycle since the Supreme Court gutted the Voting Rights Act in 2013. “The civil rights division protects Americans from government,” Levitt notes. “It is the only part of the federal government tasked with suing other branches of governments.”

Nominees to run the branch tend to be civil rights lawyers who support the implementation of laws like the Civil Rights Act and the Voting Rights Act, which were once bipartisan but are unpopular with today’s Republicans. By now, that’s to be expected. What has been more disappointing for decades now is the skittishness of Senate Democrats to vote for, and White House Democrats to stand by, these nominees.

It was Republicans who in 1993 dubbed Clinton’s pick to run the civil rights division, Lani Guinier, the “quota queen” (well understood at the time as linking a Black law professor to the “welfare queen” slur), but it was the Clinton White House that backed away abruptly. And it was seven Senate Democrats, including Chris Coons of safely blue Delaware, who in 2014 bowed to the Fraternal Order of Police’s campaign to render Obama civil rights nominee Debo Adegbile (a mild-mannered former Sesame Street actor!) into a wild-eyed sympathizer of cop-killers for successfully arguing that Jamal’s death sentence was based on a constitutional violation.

Several people involved in that nomination told me that the White House had been unprepared for the attacks on Adegbile and didn’t use the muscle of civil rights organizations to defend him. Supporters of Clarke’s nomination are now trying to learn from those mistakes, while trying not to legitimize the allegations against her.

Photo: Fox News/YouTube

The anti-Semitism canard is a favorite one of conservatives looking to drive a wedge between two core Democratic constituencies, Black and Jewish Americans, but it’s worth understanding the substance of the allegations, if only to see how thin they are. In a letter to the editor in 1994, Clarke and another student tried to satirically counter the discredited claims about race and intelligence in The Bell Curve by listing the views of researchers who claimed Black racial superiority. The letter concluded, “Imagine the message that misguided information like The Bell Curve would send to a Black child who is trying to find her place in school. It’s degrading, belittling and outrageously false.” That Clarke was making a point about whose unsubstantiated racial theories were given a platform rather than endorsing them is something you also can learn from reactions published in the Crimson at the time. More recently, Clarke said, “the goal was all about [exposing] the ugly racist underpinnings of the Bell Curve theory. It was deeply personal and profoundly important to Black students and other students of color who felt that their right to be on campus was challenged. And frankly, the fight that we were leading as students is a fight that I am still very much a part of today.”

The claim of anti-Semitism rests on the same Bell Curve fracas. The same year, BSA hosted a series of speakers to respond to the claims made in the book, including Wellesley professor Tony Martin, author of The Jewish Onslaught. Clarke told the Forward recently that it “was a mistake to accept his offer to come, and to defend him,” and that “Giving someone like him a platform, it’s not something I would do again.”

The irony of the warriors against cancel culture pinning their hopes of sinking a qualified nominee on a single college speaker and a Modest Proposal-style letter to the editor is manifest. (As Elie Mystal put it in the Nation, “Perhaps if Clarke had tried to rape Martin, instead of inviting him as a speaker, Republicans on the Senate Judiciary Committee would accept her apology for her youthful error.”)

Ironic, too, is the disingenuous concern for anti-Semitism the moment Trump returned to holding court full-time at the Mar a Lago buffet. Trump himself was fond of engaging in rank anti-Semitism in front of audiences as if it were a naughty compliment. (“A lot of you are in the real estate business because I know you very well, you’re brutal killers,” Trump told the Israeli American Council in Hollywood in December 2019. “You’re not nice people at all, but you have to vote for me. You have no choice.”) Lest anyone forget, he egged on the anti-Semitic Proud Boys during a debate. Publisher of anti-Semitic work Peter Brimelow was a guest at top Trump advisor Larry Kudlow’s birthday party; if you want to try to find a parallel, Miller even invited Brimelow to speak when at Duke when Miller was a student. But they would only be remotely equivalent if Miller had gone on to chain himself to the border in support of asylees and uniting rather than habitually thwarting and separating them; inconveniently for her critics, Kristen Clarke has since spent a good chunk of her career defending the religious rights of Jews (at the New York Attorney General’s office) and professionally fighting white supremacists (she successfully sued the man behind The Daily Stormer). The Anti-Defamation League’s president wrote in a letter to the Judiciary Committee that the group was “directly aware of her deep and unambiguous personal commitment to justice for all, including her steadfast support in the fight against antisemitism.”

Responding to this is exhausting, by design, and a game of Whac-A-Mole; the Bidennoms oppo website has added to its attacks on Clarke the charge that she, a Black woman who grew up in the Starrett City housing project in Brooklyn, hates Black single mothers. (Clarke is herself a single mother.) There’s a lot of work to be done to rebuild the civil rights division after an administration that at best neglected its work and at worst undermined it. The attacks have a chilling effect on anyone with any point of view who wants to work in government, but most of all those who have yet to be represented in those halls of power.

But the Senate Judiciary Committee has yet to even schedule a hearing for Clarke, and the campaign against her has the potential to make her another sacrificial lamb to Republicans, and towards conservative Democrats’ arbitrary quest for balance. That would be shameful.

The Smearing of Kristen Clarke